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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No.: EB-11-DT-0200
In the Matter of )
NAL/Acct. No.:
J & J Broadcasting, Inc. ) 201232360008
Licensee of Radio Stations WIMI (FM) ) FRN: 0015161508
and WJMS(AM), Ironwood, Michigan
) Facility ID Nos.: 57226,
Antenna Structure Owner 57223
)
ASR No.: 1035236
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: August 20, 2012 Released: August 21, 2012
By the District Director, Detroit Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that J & J Broadcasting, Inc. (J & J), licensee of Stations
WIMI(FM) and WJMS(AM) (Stations) in Ironwood, Michigan, and owner of
antenna structure number 1035236 (Antenna Structure) in Montreal,
Wisconsin, apparently willfully and repeatedly violated Sections
73.3526(e)(12) and 17.57 of the Commission's rules (Rules) by failing
to maintain and make available the quarterly issues/programs lists in
the public inspection file and failing to immediately notify the
Commission upon change in ownership information. We conclude that J &
J is apparently liable for a forfeiture in the amount of thirteen
thousand dollars ($13,000). In addition, we direct J & J to submit, no
later than thirty (30) calendar days from the date of this NAL, a
statement signed under penalty of perjury stating that the Stations
are now in compliance with Sections 73.3526(e)(12) and 17.57 of the
Rules.
II. BACKGROUND
2. On September 14, 2011, an agent from the Enforcement Bureau's Detroit
Office conducted an inspection with the Stations' General Manager and
Sales Manager at the Stations' co-located main studio in Ironwood,
Michigan. The agent reviewed the materials in each station's public
inspection file and found that neither station had quarterly
issues/programs lists since J & J's acquisition of the Stations on
February 1, 2010, i.e., a total of five missing quarterly
issues/programs lists. The General Manager was not able to provide any
explanation as to why the issues/program lists were missing.
3. After conducting the main studio inspection, the agent inspected the
Antenna Structure for FM Station WIMI. At the time of the inspection,
the Antenna Structure's registration specified that the owner was
Roberts Broadcasting, Inc. DBA WIMI FM, one of the former owners of
the Stations. According to the Stations' Chief Operator, J & J
acquired the Antenna Structure in 2010 when it acquired the Stations.
III. DISCUSSION
4. Section 503(b) of the Communications Act of 1934, as amended (Act),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act, and the Commission has so
interpreted the term in the Section 503(b) context. The Commission
may also assess a forfeiture for violations that are merely repeated,
and not willful. The term "repeated" means the commission or omission
of such act more than once or for more than one day.
A. Failure to Maintain Issues/Program Lists
5. The evidence in this case is sufficient to establish that J & J
violated Section 73.3526(a)(2) of the Rules. Section 73.3526(a)(2) of
the Rules requires broadcast stations to maintain for public
inspection a file containing materials listed in that section. Section
73.3526(c)(1) of the Rules specifies that the file shall be available
for public inspection at any time during regular business hours, and
Section 73.3526(e)(12) of the Rules specifically requires licensees to
place in their public inspection file each calendar quarter a list of
programs that have provided the station's most significant treatment
of community issues during the preceding three month period (known as
the issues/programs list). The issues/programs lists must include "a
brief narrative describing what issues were given significant
treatment and the programming that provided this treatment,"
including, but not limited to, the time, date, duration, and title of
each program in which the issue was treated. Copies of the
issues/programs list must be retained in the public inspection file
until final action has been taken on the station's next license
renewal application.
6. On September 14, 2011, an agent reviewed the Stations' public
inspection files and found that they were missing all five quarters of
issues/programs lists since J & J acquired the Stations on February 1,
2010. Accordingly, based on the evidence before us, we find that J & J
apparently willfully and repeatedly violated Section 73.3526(e)(12) of
the Rules by failing to maintain the issues/programs lists and make
them available in the Stations' public inspection files.
A. Failure to Update Antenna Structure Registration Database
7. Section 17.57 of the rules requires that the owner of an antenna
structure for which an Antenna Structure Registration Number has been
obtained must immediately notify the Commission upon any change in
ownership information. On February 1, 2010, J & J acquired ownership
of the Stations and the associated Antenna Structure. At the time of
the inspection on September 14, 2011, one of the previous owners,
Roberts Broadcasting, Inc. DBA WIMI FM, was still listed as the owner
on the antenna structure registration. Accordingly, based on the
evidence before us, we find that J & J apparently willfully and
repeatedly violated Section 17.57 of the Rules.
A. Proposed Forfeiture Amount and Reporting Requirement
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for violation of the
public file rule is $10,000 and for failing to file required forms or
information is $3,000. In assessing the monetary forfeiture amount,
we must also take into account the statutory factors set forth in
Section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that J & J is apparently liable for a total forfeiture in the amount
of $13,000, consisting of $10,000 for its failure to maintain any
quarterly issues/programs lists since it acquired the Stations on
February 1, 2010 and $3,000 for its failure to notify the FCC that it
acquired ownership of the Antenna Structure.
9. We direct J&J to submit a statement signed under penalty of perjury by
an officer or director of J & J stating that: (1) the radio
issues/program lists are being compiled, (2) the radio issues/program
lists are being placed in the public inspection file by the tenth day
of the succeeding calendar quarter, and (3) the FCC has been notified
using FCC Form 854 that J & J Broadcasting owns antenna structure
number 1035236. This statement must be provided to the Detroit Office
at the address listed in paragraph 12 within thirty (30) calendar
days of the release date of this Notice of Apparent Liability for
Forfeiture and Order.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, J & J Broadcasting,
Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of thirteen thousand dollars ($13,000) for violation of
Sections 73.3526(e)(12) and 17.57 of the Rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order, J
& J Broadcasting, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
12. IT IS FURTHER ORDERED that J & J Broadcasting, Inc. SHALL SUBMIT a
written statement, as described in paragraph 9, within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Northeast Region,
Detroit Office, 24897 Hathaway Street, Farmington Hills, Michigan,
48335. J & J shall also e-mail the written statement to
NER-Response@fcc.gov.
13. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. J & J shall also send electronic
notification on the date said payment is made to NER-Response@fcc.gov.
Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID)
and enter the letters "FORF" in block number 24A (payment type
code). Below are additional instructions you should follow based on
the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
14. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Northeast
Region, Detroit Office, 24897 Hathaway Street, Farmington Hills,
Michigan, 48335, and include the NAL/Acct. No. referenced in the
caption. J & J Broadcasting, Inc. also shall email the written
response to NER-Response@fcc.gov.
15. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and first class mail to J & J Broadcasting, Inc. at
P.O. Box 250, Ironwood, Michigan 49938.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
District Director
Detroit Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: S:73.3526(a)(12) and 17.57.
See BALH-20090717ABC, granted August 31, 2009 and consummated on February
1, 2010.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 8 (1991),
recons. denied, 7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362, para. 9.
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(c)(1).
47 C.F.R. S: 73.3526(e)(12).
Id.
Id.
47 C.F.R. S: 17.57.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
17.57, and 73.3526(e)(12).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1350
5
Federal Communications Commission DA 12-1350